Sri Sandip Kumar Basak vs M/S Oriental Structural ...
2022 Latest Caselaw 106 Tri

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                     HIGH COURT OF TRIPURA
                           AGARTALA
                               RFA 39 OF 2019
Sri Sandip Kumar Basak, son of late Bhaba Ranjan Basak,
Resident of East Harina, PO: Harina Bazar,
PS: Sabroom, District: South Tripura.
                                                             ---- Appellant.
                                    Versus
1. M/S Oriental Structural Engineers Private Limited,
21 Commercial Complex Malach Marg,
Diplomatic Enclave, New Delhi-21, India.

2. Sri Arjun Sutradhar, son of Gopal Sutradhar alias Mantu Sutradhar,
Resident of East Harina, PO: Harina Bazar,
PS: Sabroom, District: South Tripura.

3. Sri Sanjib Deb, son of late Jamini Kumar Deb,
Resident of Harina, PO: Harina Bazar,
PS: Sabroom, District: South Tripura.
                                                           ---Respondents.

For Appellant(s) : Mr. D.K.Daschoudhury, Advocate.

For Respondent(s) : Mr. S.M.Chakraborty, Sr. Advocate.

Ms. A. Pal, Advocate.

Date of hearing &
delivery of Judgment and order : 28.01.2022

Whether fit for reporting        : No

            HON'BLE MR JUSTICE ARINDAM LODH
          HON'BLE MR JUSTICE S.G.CHATTOPADHYAY

                        Judgment & Order (Oral)
(Arindam Lodh, J.)

This is an appeal under Section 96 of the Code of Civil

Procedure, 1908 for modification of a part of the judgment dated Page - 2 of 12

21.09.2019 and decree dated 27.09.2019, passed in MS 04 of 2017 by

learned Civil Judge (Sr. Division), South Tripura, Belonia.

2. The facts of the case as projected by learned Civil Judge, Sr.

Division are reproduced here-in-below:-

"The plaintiff's case in brief is that the plaintiff is the owner of a dwelling building which was constructed in the year 2009 on his own land measuring 0.36 acre appertains to RS Plot Nos. 2008/4228 and 2010/4229 recorded in Khatian No.1039 of Mouja - Harina incurring an expenditure of Rs. 40,00,000/- and the plinth area of the building is 2084 sq. ft., the details of which is described in the schedule of the plaint. The averments of the plaintiff is that after completion of construction of the suit building, the plaintiff started residing there with his family members and that the suit building was bounded on the Southern side of the house and courtyard of Defendant No.3 surveyed in the part of RS Plot No. 2008 of Mouja - Harina intervened by a small 'gali path'. The further case of the plaintiff is that in the 1st week of May, 2016 under an oral agreement for purchase the defendant No. 2 was developing the above mentioned land belonging to the defendant no. 3 by levelling the courtyard and also removing earth by engaging of a carter pillar (compressor machine) having registration No. TR-08-1573 which belonged to defendant no.1 and which was in fact mend for widening and pressuring land of the National High Way (NH 44). Plaintiff pleaded that during the process of working of the said cater pillar on the land of defendant no. 3 under the supervision of defendant no. 2, the plaintiff experienced frequent tremor in the suit building and so he raised objection to use of such heavy machine for earth cutting and levelling, but such objection could not resist them. It is also averted that on 07.05.2016 at about 8 am when the plaintiff was outside the home then under direct supervision of defendant no. 2 the driver of the said cater pillar started the work of levelling the courtyard of defendant no. 2 putting heavy pressure at a place very close to the suit building and as a result of which the Page - 3 of 12

walls of the suit building suffered multiple cracks making tremendous sound and at that time Smti. Lipika Datta, wife of the plaintiff rushed to the spot and raised vehement objection, but neither the defendant no. 2 nor the driver of the said cater pillar did stop their work. But however, after some times they stopped their work, but in the mean time substantial damage was caused to the suit building which turned to be precarious and extremely unsafe for human dwelling and now for safe dwelling the said building is required to be built a fresh and piecemeal repair would not work to make the suit building safe for human dwelling. It is alleged that the defendant no. 1 who is an organization named and styled as "M/s. Oriental Structural Engineers Private Ltd." has been executing the work of widening NH 44 from Udaipur to Sabroom by engaging heavy machine like cater pillar for cutting, collection and levelling of earth, but under an oral agreement between the defendant no. 1 and in one part and defendant nos. 2 and 3 on the other under instruction from defendant no. 1 his driver drove the cater pillar on the land of defendant no. 3 with active participation and supervision of defendant no. 2 who purchased the land appertains to RS Plot No. 8 for defendant no. 3 vide a deed executed on 08.07.16. It is alleged that although the possession of the land was taken over by the defendant no. 2 from defendant no. 3 much earlier and the defendant no.

2 was supervising the work of developing the said land by engaging cater pillar in issue belonging to the defendant no. 1 for their mutual benefit. It is averted that being suffered a huge damage to the suit building for the wrongful negligent act of the defendants, the plaintiff lodged an FIR to the OC Sabroom P/S which was registered as P/S case u/s 427 of IPC against the driver of the cater pillar bearing No. TR-08-1573 and that the plaintiff also sent on 04.06.16 a letter to the defendant no. 1 with a copy to the DM & Collector, South Tripura and the SDM, Sabroom claiming compensation of Rs. 50,00,000/- for going damage the suit building by wrongful and negligent act of the driver of the said vehicle who was the agent of defendants and a similar letter was also sent to the Branch Manager defendant no. 1, but none of the defendants did respond and remedied the damage suffered by the plaintiff. It is also stated that the incident in issue was published in the local daily newspaper and that the Page - 4 of 12

Deputy Secretary, PWD, Govt. of Tripura got the matter, inquired by Sri A.K. Lodh, SE 3rd Circle, PWD ( R & B), but the copy of the report was not furnished to the plaintiff and even by applying under RTI Act, the plaintiff fails to obtain the copy of the report. The plaintiff by engaging one Subrata Datta, BE Civil who is a Chartered Engineer and Registered Valuer for valuation of the extent of damage caused to the suit building on 07.05.16 and the said farm conducted investigation on 14.05.16 and submitted Valuation Report on 15.06.16 and assessed depreciation at Rs. 25,00,800/- only. It is on this background the plaintiff had instituted this case for granting compensation of Rs. 25,00,800/- along with interest @ 12% per annum on the decreetal amount.

Defendants case in brief :-

All the three defendants contested the suit by filing written statement in law and facts. The defendants denied all the averments of the plaintiff and stated inter-alia that in his letter to the defendant no. 1 on 04.06.16 seeking compensation for the damage of the said building the plaintiff stated that he spent Rs. 16,00,000/- for the construction of the said building in the year 2009 and that the plaintiff did not submit any paper regarding the plan and estimate of the said building. In the written statement the defendant admitted that the defendant no. 1 has been entrusted with the construction work of National High Way from Udaipur to Sabroom for widening the same, but denied that there is any oral agreement in between the defendants. The defendants also pleaded that regarding filing of FIR with the Officer-in-Charge of Sabroom P/S nothing has been communicated to them and that the said case was a false one and that the letter issued by the plaintiff on 04.06.16 to the Defendant No.1 was not supported by any documents or evidence. The defendants denied any knowledge of their regarding publication of news in the daily newspaper and stated that the building of the plaintiff was not damaged by the defendants and that the plaintiff filed the instant suit by giving false and fabricated statements for his own wrongful gain and that the defendant no. 1 has been entrusted by the competent authority for the construction work of widening of National High Page - 5 of 12

Way from Udaipur to Sabroom which is a long road and there are lots of buildings and constructions situated on the both sides of the road and that the defendant no. 1 executing the said construction work by deploying various types of heavy machines including compressor machine, but there is no allegation of damaging of building situated near by the road side on account of using of compressor machine and those buildings are situated within a distance of 10 to 12 feet from the High Way, but the building of plaintiff is situated at a distance of 72 feet from the land of the defendant no. 3 and that pressure of compressor machine does not affect beyond 2 or 3 feet distance from the place of compressor/vibration. In the above circumstances, the defendants prayed before this Court to dismiss the suit."

3. After exchange of pleadings, following issues were framed:-

i. Whether the Suit is maintainable in its present form and nature?

ii. Whether the Plaintiff is entitled to get compensation from the defendants for damage to the dwelling house building of the Plaintiff? If so what amount of compensation the plaintiff is entitled?

iii. Whether the plaintiff is entitled to get grant cost of the suit?

iv. Any other relief/reliefs the plaintiff is entitled to?

4. Thereafter, evidences were recorded by the parties to the suit.

On conclusion of recording of evidence, having heard the arguments

advanced by learned counsels appearing for the parties, the learned Civil

Judge, Sr. Division decreed the suit by the judgment and decree as

mentioned at the opening paragraph of this judgment.

5. While passing of the decree, learned court below had passed

the following order:-

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"[40] In the result, the suit is decreed on contest with cost. [41] The plaintiff do get compensation to the tune of Rs.5,00,000 (Rupees five lakh) against the defendants.

[42] The Plaintiff do also get further decree of interest on the aforesaid amount @ 9% per annum from the date of filing of this suit till realization of the entire amount.

[43] The Defendant Nos. 1 & 2 are directed to pay the aforesaid amount with interest in favour of the plaintiff within 3 months from the date of this order, failing which the plaintiff shall have liberty to put the decree into execution in accordance with law."

6. Being aggrieved, the plaintiff has preferred the instant appeal

before this court. The defendants also have preferred an appeal against the

decreetal amount passed by learned Civil Judge, Sr. Division before the

learned District Judge, South Tripura, Belonia being numbered as Money

Appeal 02/2019. The records of said money appeal has been transferred to

this court vide order dated 16.11.2021, passed by this court in Tr.P.(C) 20

of 2021 and the same has been tagged with this Regular First Appeal as

learned counsels of both sides have urged this court to dispose both the

appeals together on the basis of application filed by respondent No.1 since

common questions of law and facts are involved in both the appeals. On

consent of learned counsels appearing for the parties both the aforesaid

appeals have been heard together since the pleading, evidences and other

materials are same and identical.

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7. We have heard Mr. D.K.Daschoudhury learned counsel

appearing for the plaintiff-appellant [here-in-after referred to as "plaintiff"]

and Mr. S.M. Chakraborty, learned Sr. counsel assisted by Ms. A. Pal,

learned counsel appearing for the defendant-respondents [here-in-after

referred to as "defendants"].

8. Defendant No.1, M/S Oriental Structural Engineers Pvt. Ltd. is

a company involved in the construction business. Defendant No.3, Sri

Sanjib Deb being the adjacent neighbour of the plaintiff had engaged Sri

Arjun Sutradhar, the defendant No.2 to develop his land. Accordingly,

defendant No.2 had hired defendant No.1 for levelling and developing the

land of Sri Sanjib Deb. During such works, heavy machine for earth cutting

and levelling, namely, caterpillar (excavator) was used. It is the case of the

plaintiff that during such earth cutting and levelling the courtyard of

defendant No.3 under the supervision of defendant No.2, the plaintiff

experienced frequent tremor causing damage to his building. The plaintiff

raised serious objection, but, such protest was not taken into consideration

by the defendants. They continued the work. Ultimately, since the building

of the plaintiff had suffered substantial damage that required reconstruction

involving huge expenses, he claimed compensation from the defendants. At

one point of time there were some negotiations and the defendants had Page - 8 of 12

offered Rs.5,00,000/- (Rupees five lakhs) as compensation to the plaintiff,

but, it was not agreed upon the plaintiff. Hence, he filed the suit claiming

compensation for such damage of the building for Rs.25,00,800/- (Rupees

twenty five lakh eight hundred) along with interest. The basis of his claim

appears to be the assessment report [Exbt.3] made by a registered Valuer.

The defendants have filed their written statements. On the basis of

pleadings of the parties to the suit, aforesaid issues were framed.

Thereafter, learned court below had proceeded to record evidence and on

conclusion of recording evidence, learned court below had decreed the suit

for Rs.5,00,000/- (Rupees five lakh) only in favour of the plaintiff as stated

here-in-above.

9. Being aggrieved, the plaintiff has preferred the instant appeal

claiming enhancement of compensation to the tune of Rs.25,00,800/- from

the defendants.

10. At the time of hearing, Mr. Daschoudhury, learned counsel

appearing for the plaintiff has submitted that the building of the plaintiff

has been extensively damaged and the extent of damage had been assessed

by a competent and registered Valuer. The Valuer has submitted report

assessing the damage at Rs.25,00,800/- on the basis of which the plaintiff

had filed the instant money suit before the learned trial court, but, the Page - 9 of 12

learned trial court has failed to consider the assessment report made by the

Valuer and decreed the suit only for an amount of Rs.5,00,000/- without

any foundation, and merely out of imagination. Learned counsel for the

plaintiff has submitted that when there is specific evidence in regard to the

extent of damage, then, learned court below ought to have been ignored the

guesswork while decreeing the suit for Rs.5,00,000/- in favour of the

plaintiff. Learned counsel for the plaintiff has further submitted that the

defendants have failed to place any contrary evidence that the building was

not damaged to the extent of Rs.25,00,800/-.

11. On the other hand, Mr. Chakraborty, learned Sr. counsel

appearing for the defendants has submitted that the plaintiff has failed to

substantiate that the extent of damage was of Rs.25,00,800/-. Learned Sr.

counsel has submitted that the plaintiff is not entitled to any damage for the

reason that his building was not damaged at all and his entire claim is

imaginary and based on conjectures and surmises.

12. We have heard the rival submissions of learned counsels

appearing for the parties. We have perused the evidence let in by the parties

and also have gone through the judgment passed by the learned court

below.

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13. Having gone through the evidence let in by DW-2 and DW-3,

it is established that the defendants had offered Rs.5,00,000/- to the

plaintiff for the damage of building, which was not accepted by the

plaintiff. We have also perused the report of the registered Valuer who has

assessed the extent of damage after due investigation. We find there the

said assessment report remains uncontroverted. Furthermore, the

defendants did not make any effort to controvert such assessment report

[Exbt.3] as made by the Valuer.

14. After perusal of the judgment of learned trial court, we are of

the opinion that the learned trial court without any foundation and materials

before it has assessed the damage to the tune of Rs.5,00,000/- in favour of

the plaintiff. We are inclined to give much importance to the report

submitted by the registered Valuer. We have noticed the detailed valuation

report assessing the extent of damage that the building suffered could not

be shaken. However, we are not satisfied regarding the value as quantified

and assessed by the Valuer against some of the items worth Rs.10,00,000/-

(Rupees ten lakhs) only.

15. In the above conspectus, the judgment and decree passed by

learned Civil Judge needs interference and requires to be enhanced by

further Rs.10,00,000/-, which ultimately comes to Rs.15,00,000/- only.

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16. Accordingly, we have assessed the damage of the building of

the plaintiff at Rs.15,00,000/- (Rupees fifteen lakhs) only. The plaintiff is

entitled to have a declaration for realization of money for a sum of

Rs.15,00,000/- (Rupees fifteen lakhs) only as compensation. Thus, the suit

of the plaintiff is decreed for Rs.15,00,000/- (Rupees fifteen lakhs) only

which shall carry interest @ 6% per annum instead of 9% as decreed by

learned Civil Judge.

It is further ordered and decreed that the defendant No.1, M/S

Oriental Structural Engineers Pvt. Ltd. shall bear 50% of the said amount

and the remaining 50% amount shall be equally paid by the defendant Nos.

2 and 3 i.e. Sri Arjun Sutradhar, the Contractor and Sri Sanjib Deb, the

owner of the neighbouring house of the plaintiff for the reason that they are

vicariously liable for the damage of the building of the plaintiff.

17. With the aforesaid modifications of the judgment and decree

dated 21.09.2019 and 27.09.2019 respectively, this appeal stands allowed

and disposed.

18. Draw the decree accordingly.

Send back the LCRs.

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The Record of Money Appeal No.02/2019 be also sent back to

the appropriate court.

                   JUDGE                               JUDGE